United States v. Usher

United States District Court, District of Nebraska

May 11, 2015

UNITED STATES OF AMERICA, Plaintiff,v.ROBIN USHER, Defendant.

TENTATIVE FINDINGS

John M. Gerrard United States District Judge

The Court has received the revised presentence investigation report and addendum in this case. The defendant has objected to the presentence report and moved for a downward variance. Filings 126 and 127.

IT IS ORDERED:

1. The Court will consult and follow the Federal Sentencing Guidelines to the extent permitted and required by United States v. Booker, 543 U.S. 220 (2005) and subsequent cases. In this regard, the Court gives notice that, unless otherwise ordered, it will:

(a) give the advisory Guidelines respectful consideration within the context of each individual case and will filter the Guidelines' advice through the 18 U.S.C. § 3553(a) factors, but will not afford the Guidelines any particular or "substantial" weight;

(b) resolve all factual disputes relevant to sentencing by the greater weight of the evidence and without the aid of a jury;

(c) impose upon the United States the burden of proof on all Guidelines enhancements;

(d) impose upon the defendant the burden of proof on all Guidelines mitigators;

(e) depart from the advisory Guidelines, if appropriate, using pre-Booker departure theory; and

(f) in cases where a departure using pre-Booker departure theory is not warranted, deviate or vary from the Guidelines when there is a principled reason justifying a sentence different than that called for by application of the advisory Guidelines, again without affording the Guidelines any particular or "substantial" weight.

2. The defendant objects to the presentence report in several respects. Mindful of the specific considerations set forth below, the Court will resolve the defendant's objection at sentencing.

(a) The defendant's first two objections are factually, if not legally, related: the defendant objects to the 14-level enhancement for specific offense conduct based on loss calculation, and the 2-level enhancement for the number of victims. The defendant generally argues that some of the money counted as "loss" wasn't attributable to the crime, that some of the losses are not sufficiently documented, and that some of the included victims were not actually victims. See filing 127 at 6-8. The Court expects to resolve these issues on the evidence presented at the June 9, 2015 evidentiary hearing.

The Court also notes that under U.S.S.G. § 2B1.1, loss calculation and the number of victims are specific offense characteristics, not part of the base offense level. As a result, even the full losses attributable to the fraud, and the total number of victims found by the Court, are not automatically attributable to this defendant: because the defendant pled guilty to being an accessory after the fact, the offense level is enhanced for only the specific offense characteristics that were known or reasonably should have been known by the defendant. U.S.S.G. § 2X3.1 cmt. n.1 (citing U.S.S.G. § 1B1.3 cmt. n.10); see United States v. Spinelli, 277 F.App'x 936, 939-41 (11th Cir. 2008);see also United States v. Hayes, 518 F.3d 989, 995 (8th Cir. 2008) (citing United States v. Booker, 186 F.3d 1004, 1007 (8th Cir. 1999)). Accordingly, in determining the defendant's Guidelines range, the Court will include only those losses and victims that were known or reasonably should have been known by the defendant.

(b) The defendant objects to the two-level enhancement for "sophisticated means." Filing 126 at 2. The defendant's argument is essentially that the sophisticated means enhancement of U.S.S.G. § 2B1.1(10)(C) is "applicable when the defendant's own actions constituted sophisticated means, not those actions of a co-defendant." The defendant cites no authority for this proposition, and it is inconsistent with the Guidelines: as mentioned above, § 2X3.1 provides that the base offense level for being an accessory after the fact is six levels below the offense level of the underlying offense, including any specific offense characteristics that the defendant knew or reasonably should have known ...

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